The ability for courts to hold trials in secret to deal with national security matters will be scrutinised at a two-day hearing in Canberra.
Grant Donaldson, Australia’s Independent National Security Legislation Monitor, will hear from government officials, intelligence bosses, prosecutors and human rights advocates.
There will also be a session with the legal team for Bernard Collaery, whose prosecution over allegedly leaking classified information about an alleged Australian spying operation in East Timor was dropped in 2022.
Mr. Donaldson cautioned against secret trials after the case of the former military intelligence officer dubbed Witness J, also known by the pseudonym Alan Johns.
The case only came to light after Witness J launched a court challenge against a prison for tipping off police about a memoir he was writing.
Johns was charged, arraigned, convicted on his plea of guilty, sentenced and served his sentence without the public being aware of any of it.
The basis of secret trials lies in the National Security Information (Criminal and Civil Proceedings) Act 2004, known as the NSI Act, which Mr Donaldson is reviewing.
The NSI Act allows agreements to be made in federal criminal proceedings between the parties to the case and the attorney-general over the “disclosure, protection, storage, handling or destruction of national security information.”
Mr. Donaldson said the Johns case showed how the NSI Act could be used to conduct a federal criminal prosecution “in ’secret' from start to finish and to maintain this secrecy, seemingly, indefinitely”.
“This should not have happened in Alan Johns, and it should never happen again.”
The Human Rights Law Centre says while secret trials have a long history in authoritarian states, they have no place in democracies like Australia.
Attorney-General Mark Dreyfus says completely secret trials are inconsistent with the rule of law, and court cases should be as open as possible while ensuring the protection of national security information.
